Smith v. Vandepeer

HARRISON, P. J.

The last will and testament of Fannie Simpson appointed the defendants herein as its executors, and contained among other provisions the following:

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" Fourth. I desire to be buried beside my husband in the cemetery of San Lorenzo; and I give, devise and bequeath to my executors hereinafter named the sum of two thousand dollars, in trust, however, that they shall invest the same in such way as their good judgment shall dictate so as to produce an annual income, which income shall be applied perpetually to keep in repair, embellish and make attractive our burial lot in said cemetery.”

“Tenth. All the remainder of my estate I give and bequeath to my sister the said Catherine Smith.”

The testatrix died December 26, 1891, and on January 11, 1892, her will was admitted to probate by the superior court of Alameda county, and on the same day letters testamentary thereon were issued to the defendants. Thereafter such proceedings were had that on January 16, 1893, the superior court settled the final account of the executors, and made its decree of distribution of said estate, in and by which it distributed to the defendants herein the sum of $2,000 in trust (setting forth the provisions of the trust as stated in the will), and distributed to the plaintiff herein all the remainder of the estate of said decedent, which was described in said decree as “all the rest of said estate, whether herein described or not.” The $2,000 thus distributed to the defendants was received by them February 20, 1893, and, with the exception of so much thereof as has been expended in the care of said burial plot, they still have the same in their possession, together with its accumulations. March 2, 1904, the plaintiff brought the present action against the defendants, alleging that under the constitution of the state no perpetuity is allowed except for eleemosynary purposes, and that by the above clause in her will the testatrix attempted to create a perpetuity which is not for eleemosynary purposes; that the judgment of the court distributing the legacy to be held by the defendants for the purposes of said trust is void, and that as the residuary legatee of the decedent she is entitled to the same, together with its accumulations, and praying that the defendants be declared to hold the same for her benefit, and that they render an account thereof, and be directed to pay the same to her. A demurrer to this complaint on the part of